HomeMy WebLinkAbout20163397.tiffnr
BOARD OF COUNTY COMMISSIONERS
PASS -AROUND REVIEW/ WORK SESSION REQUEST
RE: Tyler Technologies, Inc. Support Agreement Extension Renewal
DATE: October 20, 2016
DEPARTMENT: Information Technology
PERSON REQUESTING: Ryan Rose
Brief description of the problem/issue:
Tyler Technologies, Inc. provides Clerk & Recorder with their recorder software. The software is used by the
Clerk & Recorder department for managing their daily needs.
The attached agreement extension between the Board of Weld County Commissioners provides for software
maintenance from November 1, 2016 through October 31, 2017, in the amount of $44,426.75.
What options exist for the Board? (Include consequences, impacts, costs, etc. of options)
This provider specializes in selling this software which is utilized by the Clerk & Recorder department to conduct
their daily businesses.
Recommendation:
It is recommended that the BOCC approve the extension agreement for an additional term.
Anurove
Recommendation
Mike Freeman, Chair
Sean P. Conway
Julie Cozad
Steve Moreno
Barbara Kirkmeyer
Schedule
Work Session
Other/Comments:
2016-3397
b)rvs_sLKY
0-000
CONTRACT AGREEMENT EXTENSION/RENEWAL BETWEEN
THE WELD COUNTY OF Information Technology
AND Tyler Technologies, Inc.
This Agreement Extension/Renewal ("Renewal"), made and entered into 1st day of November, 2016by and between the
Board of Weld County Commissioners, on behalf of the Weld County Department of Information Technology, hereinafter referred to
as the "Department", and Tyler Technologies, Inc., hereinafter referred to as the "Contractor".
WHEREAS the parties entered into an agreement (the "Original Agreement") identified by the Weld County Clerk to the
Board of County Commissioners as document No. 2011-2237, approved on August 17, 2011.
WHEREAS the parties hereby agree to extend the term of the Original Agreement in accordance with the terms of the
Original Agreement, which is incorporated by reference herein, as well as the terms provided herein.
NOW THEREFORE, in consideration of the premises, the parties hereto covenant and agree as follows:
• The Original Agreement will end on 10/31/2016.
• The parties agree to extend the Original Agreement for an additional 1 year period, which will begin November 1, 2016, and
will end on 10/31/2017.
• The Renewal, together with the Original Agreement, constitutes the entire understanding between the parties. The
following change is hereby made to the Contract Documents:
1.
2.
• All other terms and conditions of the Original Agreement remain unchanged.
IN WITNESS WHEREOF, the parties hereto have duly executed the Agreement as of the day, month, and year first above written.
CONTRACTOR:
0441& W&'wibk, f e Sii decd,
Prin
Signature
ATTEST:
Weld
BY:
dardio) Jdo:vi
Deputy Cler Board
BOARD OF COUNTY COMMISSIONERS
WELD COUNTY, COLORADO
Mike Freeman, Chair Nov 0 2 2016
APPROVED AS TO SUBSTANCE:
Elect ,:'•fficial or Department Head
026 / l0 _,53q7
•
•
•••••tyler.
.,.• technologes
Emparwerpleople who serve the public*
Okay To Pay:
Date:
Project #:
Ticket #:
Banner Code: jo00-///op-62Z7%o°
Nntns:
Bill To:
WELD COUNTY CLERK
Kevin Jass, Functional Consultant
Box 758
GREELEY, CO 80631
Remittance:
Tyler Technologies, Inc.
(FEIN 75-2303920)
P.O. Box 203556
Dallas, TX 75320-3556
Questions:
Tyler Technologies - Local Government
Phone: 1-800-772-2260 Press 2, then 2
Fax: 1-866-673-3274
Email: ar@tylertech corn
Ship To:
Invoice
Invoice No
025-167420
Date
10/01/2016
Page
1 of 1
I
11111
VI
WELD COUNTY CLERK
Kevin Jass, Functional Consultant
Box 758
GREELEY, CO 80631
i
II
w
Customer No.
45007
Ord No
71010
PO Number
Currency
USD
Terms
NET30
Due Date
10/31/2016
Date Description
Contract No : Weld County Clerk, CO
Software Support EagleRecorder Recording
Maintenance: Start: 01/Nov/2016, End: 31/Oct/2017
Software Support EagleRecorder Recording
Maintenance Start: 01/Nov/2016, End: 31/Oct/2017
Software Support EagleRecorder Public View Recording
Maintenance Start: 01/Nov/2016, End: 31/Oct/2017
Software Support Public Printing EagleRecorder Recording
Maintenance Start: 01/Nov/2016, End: 31/Oct/2017
Software Support EagleWeb Recording
Maintenance Start: 01/Nov/2016, End: 31/Oct/2017
Software Support eCommerce Recording
Maintenance Start. 01/Nov/2016, End: 31/Oct/2017
Software Support CCI Interface for Recording
Maintenance Start: 01/Nov/2016, End: 31/Oct/2017
Software Support EagleQuickdocs Recording
Maintenance Start: 01/Nov/2016, End: 31/Oct/2017
**ATTENTION**
Order your checks and forms from
Tyler Business Forms at 877-749-2090 or
tylerbusinessforms.com to guarantee
100% compliance with your software.
Units
1
1
1
1
Rate
6,320 63
18,232 60
1,823 26
3,038 78
5,469 78
2,734 89
2,431 01
4,375 82
Extended Price
6,320 63
18,232.80
1,823 26
3,038 76
5,469 78
2,734,89
2,431 01
4,375 82
Subtotal
Sales Tax
Invoice Total
44,426.75 II
I,
0.00
44,426 75 1
TYLER C•PY
System Agreement
Between
Tyler Technologies, Inc.
5519 - 53rd Street
Lubbock, Texas 79414
(800) 646-2633
(806) 797-4849 Fax
AND
Weld County Clerk & Recorder
1402 North 17th Avenue
Greeley, CO 80631
Phone: 970-304-6530 Ext. 3155
smoreno@co.weld.co.us
tyler
A
2011-2237
C (Z O O ? (D
tyler
AGREEMENT
This agreement is entered into by and between Tyler Technologies, Inc , hereinafter referred
to as COMPANY, located al 5519 53rd Street, Lubbock, Texas 79414; and; Weld County Clerk & Recorder
hereinafter referred to its CLIENT on 2011
COMPANY and CLIENT agree as follows
I COMPANY shall furnish the products and services as described in this Agreement, and CLIENT shall pay the prices
set forth in this Agreement.
2. This Agreement consists of this Cover and the following Attachments and Exhibits:
Section A Investment Summary (A -F)
Section B COMPANY Agreement Terms and Conditions
3 The License Fees set forth in the Investment Summary are based on defined category levels. Place-
ment within a category is based on the size of the organization serviced and measured by such factors
as operating budget, number of employees, number of utility accounts, number of sworn officers,
population of the entity, etc.
IN WITNESS WHEREOF, persons having been duly authorized and empowered to enter into this
Agreement hereunto executed this Agreement effective as of the date last set forth below.
Board of Weld County Commissioners
on behalf.of:
Client: Weld County Clerk & Recorder
s ore
arbara Kirkmeyerr, Chair
Printed Name
Chair
Title
Tyler Technologies, Inc.:
l . By:
AUG 1 72011
Date
84-6000-813
Sales Tax Certificate Number
13
Signature
S. Brill Cate
Printed Name
President, Local Government Division
Title
8/4/11
Issue Date
tyler
Customer Mow
Cones:
Deus
5Il $m.n:
Weld County CWk 6 Recorder
Stew Moreno
AuOuet 4, 2011
Olen adder
Investment Summary
Prepared for:
Canted Person'
Addreut
Phoar.
Pas:
Email:
Weld County Clerk & Recorder
Steve Moreno
1402 North 171h Avenue
Cawley, CO 60631
970-304-6530 Exl 3155
970-353-1964
unoreno@co.weld.eo.us
Cataract ID M: 20114141
here Dale: II/4/l1
Stamen: C. Snider
Tea Exempt:
Pet
tOtat$4,44116041aUT.
►
Oa Natant
061611w,
Aa%wised •
A4'PrviriWWOcala
'1100!6
Toot App0eeiorts 6eIrrea
[!tenet fiaa
teal pterwaw Sonless
102,76000
00,700 00
4 ,
102,760.00
00,700,00
30,660 00
1
.i�L. pr
?
1
0.00,
I.OO
t ,750.00
1i,00.P,
. 4,_
t
.36091404
Near Note; Tawl asperses tr/l/ be billed or leearrea{
C
General Payment Terms
ty!er
General Payment Terms: The fees and other charges set forth on the Investment Summary - Page C shall be due
and payable as follows:
(a) License Fees CLIENT shall pay to COMPANY the license fees for the Migrated Software upon CLIENTS
live processing per product suite. In no case, shall this period exceed one hundred -eighty (180) days from
delivery of the software.
(b) Protect Manoaentent Services. Project management will be billed upon CLIENT's live processing of first
product suite. In no case, shall this period exceed one hundred -eighty (180) days from delivery of the sofware.
(c) gate Conversion Services; Conversion Programming Fee will be billed upon CLIENT's live processing of
the converted suite In no case, shall this period exceed one hundred -eighty (180) days from delivery of the
software. Associated service fees will be billed as incurred.
(d) Professional Services; All other professional service fees and expenses shall be billed as delivered and
Incurred and shall be due and payable net 30 days.
(e) Annual Software Maintenance Fees: The annual software maintenance fees presented on Page C of the
Investment Summary will take effect upon the next annual maintenance renewal period. Thereafter, the annual
software maintenance fees for the Migrated Software shall be billed annually in advance end due upon such
anniversary date.
(f) The fees and other charges set forth on the Investment Summary - Page C do not include any tax or other
governmental imposition including, without limitation, sales, use or excise tax. All applicable sales tax, use tax,
or excise tax shall be paid by CLIENT and shalt be paid over to the proper authorities by CLIENT or reimbursed
by CLIENT to COMPANY on demand in the event that COMPANY is responsible or demand is made on
COMPANY for the payment thereof. If tax-exempt, CLIENT must provide COMPANY with CLIENT'S tax-exempt
number or form.
Weld County, CO
Eagle Recorder / Eagle Clerk
Base License Fee
(per Installation of the master application)
Full Use Licenses
Full Use Site licenses
Public View Licenses
Public View Site Licenses
Forms Printing
(per Installation of the master application)
2 Number of Forms included. Additional costs for additional form setup. Duplex
printing requires a duplex printef.
Public Printing
(per Installation of the master application)
August 4, 2011
26,000 26,000 5,200
75,000 75,000 15,000
7500 7,500 1,500
Included Included Included
1 12,500 12,500 2,500
Totals for Eagle Software and Support
121,000 24,2001
1
Totals for Eagle Software
$121,000
1
Analysis, Design & Site Prep
Conversion Services
Data Upload
image Upload
Software Staging
Testing & User Acceptance
Project Management
Installation of Software and Hardware
Training Services
On -site Training
Go -Live Services
1 3,500
3,500
1 9,000 9,000
1 7,500 7,500
1 3,500 3,500
1 7,000 7,000
1 11,200 11,200
1 3,360 3,360
1 15,120
1 15,120
15,120
15,120
Service Totals for Eagle Recorder:
$75,300
!Total for Eagle Software Modules:
$196,300
1
AnnoiViattiiitttmlbit_oriciinaintiiiianee)
IAnnual Software Support for Eagle Software Modules:
$24,200
E
Web Services / Assessor Interface
Weld County, CO
Additional Modules
August 4, 2011
Eagle Web Application
Internet Access Module
eCommerce for Eagle Web
1
'Estimated Cost. Assumes County covers 3rd party costs including establishing a Merchant 1
Account and provides high speed Internet Access. Requires Web application, above.
Eagle Web Installation Services
Remote Installation and Implementation Services are Included at no charge. Assumes
Eagle Web installation and Implementation occurs in conjunction with Eagle Recorder f
Eagle Clerk Training and Implementation. Additional charges will apply If on -site services
are required.
1
22,500
11,250
22,500 4,500
11,250 2,250
2,800 2,800
ITotai for Eagle Web Software, Services and Hardware:
$36,550 6,750
Quickdocs
Integrated Electronic Document Recording Capability
Quickdocs Installation Services
Installation and Implementation - Assumes Quickdocs Training and Implementation occur In
conjunction with EagteRecorder Training and Implementation.
1
1
18,000
12,600
18,000 3,600
12,600
Total for Eagle Quickdocs Module:
$30,600 3,600
Tyler Technologies has a documented and well used web service that will allow 3rd party 1 10,000 10,000 2,000
vendors {e.g. CCI) to update the EagleRecorder software. This would allow 3rd party vendors
to access the data/Images in "real time via Web Services. 3rd party vendors would have to
Integrate to Tyler's Web Services. Tyler will not update, change, modify the Web Services.
This price does not include any services the 3rd party vendor may need to do to write to this
documented web service.
Total for Interface:
520,000 ;2,000
Weld County. CO August 1, 2011
RAGS
DESCRIPTION OF SERVICES
.0 iftAketCEYMADDO
Ind.des a Client Surv.e Provide. fore study of forms, workflow, hardwereangoonment, reports,
foes and olh.rinfamot on Prouldos for creation of client sew Ilk Pr.sent01ln., lees and forms
Q106601610.110dEdil
pre ueteso
this Oat item anikipasas.a aemOttta 3053 upbnd Teter MI wp&yth. Calmly with Ow
woo We layout bs,not squired for uploading the dal. The Cnwtty will top* ./dele in
• Ned ASCII lest 4. 00 CO or who. med4 reutwpy sifted upon n Sae WWI I0e layout
banal on tnealecl if auppl 0 In tint loetesL the msnlns5 upland(0.5,Wkaitem
will apply. if dela h supplied In any other format than the one required by Tyler,
eddlllo.l shallot will apply. Tyler will provide mood town, inrosmetloo lracwds lit,
records put; W.). County will he esponslble for twittering the Inputted data and the
conyelhd data for acrurnry and completeness
0....IJ teed
This le. hem anticipatesa compleln image upload. Tyler will supply lone County with the
tear, imp. O. IayOut format rogue.' lueno'004n95 rte sma`et, TM (cooly wdt wtPiy
AI nooses. CD Of other media mutually agreed upon in the *oast nose layout funnel an
**tilted d wppbed In the, format, the munm5 upload roe toted site apply, In sh. unpns
an supph.d la any oche format than Ow one repotted by Tyler, oduebnat chows nub
apply TWO, will pond. noose count mlrmstlon (nooses In, most. pot. etc I. Courtly
reel U. resp000bk for ndaw ug the uploddment. for accwary and tornyeerwss.
i]YhKp(,S�egrg
ntiudes prohasmnat winces for all staging of aathe:Oflwe. componentsfanaLch careens,
lanes, ocotillo*, !whorls, mde5ng macrnh tables and Ott; dacumans ruder, surreal 'wows;
terms teat and products) tarkde conNeoratlon of that oraHrlion and led dalabava
TmID[Jt#.iWnO0wl .
Includes pr01nlslonai sevhas for 'oar testmg end accapanca of a II the toilworn consoownts
Isearch ereees; labels, workflow; lookups, imnaMg moans, ,shies and Not, docum.n. sodas;
current ropurts; roosts; fees and prududsl.
Includes alienated MtealNrud .gybe, for 'rioted management and general pmlecl
development. Prolect nl0Mgenrd Int Modes treetops wets and urn staff members for
development of work moo...moots, resources requnnt ftetm and fyfanL prefect managen.nt
and protect tracking. Swwcdy software rneliilrarte» / eehantements and design II ,.q.dred
Develop Protest Woo and Wetly* Develop Comrer.lon llplo.4 Plan and Schdelo Develop
iWtelte loo
lathldn estlnsa red aloft skm01 spokes for Installation of rho Whoa re and any hardwee quoted
he1Nn. Includes conlleutailoe ofdatabase and apolfealson senora
talsitasibillassom
rotted.. estimated professional smokes ton naming and Implemenratlon required for a
succa»lul inlolenrentation of the 0rolutt.
Galles Sanalsge
Includes .stlnroled professional services /or Golly. implementation and transllion
=somas
Soa.ke boon or. God on a cyplc.i lnelellotlon lop . county of than liii SUMO hour. mum.
qnt pre Client titbit to mesa their oblleahons nl0rµrd sten wap.hlllM for ad .th.µ 1,4
t 01.001 Nndwor* deiwry dates (II ordeals. thrlt own h.rdweet, Plc. Tens soun mold be
pwor then those quoted In *oIr.Ordlney circunsstanceb. Any additional hours requbd will
be aChedtdsd with the canon, of the °Ye , Preset Meng..
hmtdot
Trw01 end oaslt.s.rolo.wearers ARE NOT Included In lids quasi, If Orridb. son le.e an
rgWred. newel a pence typed MOW. meal Per Diem, alrteb Nall, (are IMMO. mileage.
Parking .alines end mbar rwe0Il.rnoul 100001 expenses- M Wars is Gonad a mminnum of
two week, be advent.. Should . schedule doss. In(aeiW. rnah.dultng / r.GMfng a hilt,
lb* r.b.ebl op I.t, plus env .dµ15005 WWI doges, ore billable.
EstInutod Service Estimated Day.
Costs E111mated Rows Oo.Silo
1 A i e
9,000
n/n n/a
7,000 era
3,500
n/a
1S 0
7.000 SO
11,100 S0
9,360 24 0
15,120 108 0
05,120 100 14
p01lmded Sernfe.,
COMPANY MIGRATION AGREEMENT
TERMS AND CONDITIONS
1. General Terms. The following terms set forth in this Section I apply to each of the Software
License Agreement (Section 2), Professional Services Agreement (Section 3), Annual
Maintenance Agreement (Section 4), Hardware and System Software Agreement (Section 5),
Annual Hardware Maintenance Agreement (Section 6), Third Party Product Agreement
(Section 7), and RMA Policy (Section 8) as if fully set forth therein.
1.1 General Payment Terms. See page D of the Investment Summary.
1.2 Invoicing. The Company shall invoice the Client in accordance with Section 1.1. In the
event of any disputed invoice, Client shall provide written notice of such disputed invoice to
Attention: Company Controller at the address listed on the cover of this Agreement. Such
written notice shall be provided to Company within fifteen (15) days. An additional fifteen
(15) days is allowed for the Client to provide written clarification and details for the disputed
invoice. Company shall provide a written response to Client that shall include either a
justification of the invoice or an explanation of an adjustment to the invoice and an action
plan that will outline the reasonable steps needed to be taken by Company and Client to
resolve any issues presented in Client's notification to Company. Client may withhold
payment of only the amount actually in dispute until Company provides the required written
response, and full payment shall be remitted to Company upon Company's completion of all
material action steps required to remedy the disputed matter. Notwithstanding the foregoing
sentence, if Company is unable to complete all material action steps required to remedy the
disputed matter because Client has not completed the action steps required of them, Client
shall remit full payment of the invoice. Any invoice not disputed as described above shall be
deemed accepted by the Client. If payment of any invoice that is not disputed as described
above is not made within sixty (60) calendar days, Company reserves the right to suspend
delivery of all services under this Agreement.
1.3 Cooperative Nature of Implementations. Client acknowledges that the implementation of
the products identified on the Investment Summary is a cooperative process requiring the
time and resources of Client personnel. Client shall, and shall cause Client personnel to, use
all reasonable efforts to cooperate with and assist the Company as may be reasonably required
to timely implement the systems. The Company shall not be liable for failures to timely and
effectively implement the systems when such failure is due to Force Majeure or to the failure
by Client personnel to provide such cooperation and assistance (either through action or
omission).
1.4 No Intended Third Party Beneficiaries; Assignment. This Agreement is entered into solely
for the benefit of Company and Client. No third party shall be deemed a beneficiary of this
Agreement or have the right to make any claim or assert any right under this Agreement. The
Client shall not have the right to assign or transfer its rights hereunder to any party.
1.5 Cancellation or Termination. In the event of cancellation or termination of this Agreement,
Client shall pay Company for all third party products, services and expenses not in dispute
and non -defective Tyler software products which were delivered or incurred prior to the date
Company received Client's notice of termination. Payment for third party products, services
and expenses in dispute will be determined in accordance with the dispute resolution process.
1.6 Entire Agreement.
(a) This Agreement, including the functional description of the software products found in
Company's written proposal and/or RFP Response to Client, represents the entire
agreement of Client and Company with respect to the items listed within the Investment
Summary and supersedes any prior agreements, understandings and representations,
whether written, oral, expressed, implied, or statutory. Client hereby acknowledges that
in entering into this Agreement it did not rely on any representations or warranties other
than those explicitly set forth in this Agreement and the functional description of the
software products found in Company's written proposal and/or RFP Response to Client.
COMPANY MIGRATION AGREEMENT
TERMS AND CONDITIONS
(b) If any term or provision of this Agreement or the application thereof to any person or
circumstance shall, to any extent, be invalid or unenforceable, the remainder of this
Agreement or the application of such term or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable shall not be affected thereby,
and each term and provision of this Agreement shall be valid and enforced to the fullest
extent permitted by law.
(c) This Agreement may only be amended, modified, or changed by a written instrument
signed by both parties.
(d) Client should return an executed copy of this Agreement to Company. If the Agreement is
not returned to Company within 90 days from the issue date, then such Agreement is
subject to be voided and prices are subject to change.
1.7 Force Majeure. Company shall not be responsible for delays in performing its obligations
hereunder to the extent that such delays are caused by strikes, lockouts, riots, epidemic, war,
government regulations, fire, power failure, acts of God, or other causes beyond its control.
1.8 General Limitation of Liability. IN NO EVENT SHALL CLIENT OR COMPANY BE
LIABLE TO THE OTHER PARTY FOR INCIDENTAL, CONSEQUENTIAL,
EXEMPLARY, INDIRECT, OR SPECIAL DAMAGES OF ANY KIND OR NATURE,
INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROM LOSS
OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS ACTIVITIES, OR FAILURE
TO REALIZE SAVINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, IRRESPECTIVE OF WHETHER THE PARTIES HAVE ADVANCE
NOTICE OF THE POSSIBILITY OF SUCH DAMAGE.
1.9 Approval of Governing Body. Client represents and warrants to Company that this
Agreement has been approved by its governing body and is a binding obligation upon Client.
Client represents and warrants that funds are appropriated and/or arrangements have been
made with a third party financier. Both parties represent that this Agreement has been
executed by an authorized representative.
1.10 Dispute Resolution. In the event of a dispute between the parties under this Agreement that
cannot be resolved by good faith negotiations between the parties, the matter shall be settled
by arbitration in accordance with the prevailing rules of the AAA.
1.11 Governing Law. This Agreement shall be governed by and construed in accordance with
the laws of Client's state of domicile.
2. Software License Agreement
2.1 Software Product License.
(a) Upon Client's timely payment in full of the software products license fees set forth in the
Investment Summary of this Agreement, Company shall grant to Client, and Client shall
accept from Company, a non-exclusive, nontransferable, non -assignable license to use
the software products and accompanying documentation for the internal business
purposes of Client only, subject to the conditions and limitations in this Software License
Agreement.
(b) Client shall not (i) reverse engineer, de -compile, or disassemble any portion of the
software products or (ii) sublicense, transfer, rent, or lease the software products.
(c) Ownership of the software products, accompanying documentation and related materials,
and any modifications and enhancements to such software products and any related
interfaces shall remain at all times with Company.
(d) The software products are not licensed to perform functions or processing for
subdivisions or entities that were not considered by Company at the time Company
issued this Agreement.
2
COMPANY MIGRATION AGREEMENT
TERMS AND CONDITIONS
(e) The right to transfer this license to a replacement hardware system is included in this
Software License Agreement. The cost for new media or any required technical
assistance to accommodate the transfer would be billable charges to Client. Advance
written notice of any such transfer shall be provided to Company.
(f) Client agrees that the software products, any modifications and enhancements, and any
related interfaces are proprietary to Company and have been developed as a trade secret
at Company's expense. To the extent permitted by law, Client agrees to keep the software
products confidential and use its best efforts to prevent any misuse, unauthorized use, or
unauthorized disclosures by any party of any or all of the software products or
accompanying documentation.
(g) If Client has made modifications to the software products, Company will not support or
correct errors in the modified software products, unless modifications were specifically
authorized in writing by Company.
(h) Client may make copies of the software products for archive purposes only. Client will
repeat any proprietary notice on the copy of the software products. The documentation
accompanying the software products may not be copied except for internal use.
(i) The term of the license granted by this Section shall be perpetual.
(j) Company maintains an escrow agreement with an escrow services company under which
Company places the source code of each major release. At Client's request, Company will
add Client as a beneficiary on its escrow account. Client shall be invoiced the annual
beneficiary fee by Company and shall be solely responsible for maintaining its status as a
beneficiary.
2.2 License Fees. Client agrees to pay Company, and Company agrees to accept from Client as
payment in full for the license herein, the total sum of the Company license fees set forth in
the Investment Summary, which shall be paid in accordance with the payment provisions set
forth in Section 1.1.
2.3 Verification of the Software Products.
(a) At the Client's request, within thirty (30) days after the software products have been
installed on Client's system, Company shall test the software products in accordance with
Company's standard verification test procedure. Demonstration shall constitute Client's
verification that the software products substantially comply with Company's current
specifications for the most current version of the software products and functional
descriptions of the software found in Company's written proposal to Client.
(b) At its option, Client may perform Client's own defined internal validation process to test
the software to substantially comply with Company's current specifications for the most
current version of the software products and functional descriptions of the software found
in Company's written proposal to Client. Such validation test shall constitute Client's
verification.
(c) Notwithstanding anything contrary herein, Client's use of the software products for its
intended purpose shall constitute Client's verification of the software products, without
exception and for all purposes.
(d) Verification or validation, by Client, that the software products substantially comply with
Company's current specifications for the most current version of the software products
and functional descriptions of the software found in Company's written proposal to Client
shall be final and conclusive, except for latent defect, fraud, and such gross mistakes that
amount to fraud. In the event said verification becomes other than final, or becomes
inconclusive, Client's sole right and remedy against Company shall be to require
Company to correct the cause thereof.
(e) Company shall correct any functions of the software products that failed the standard
verification testing or failed to comply with Company's current specifications for the
most current version of the software products and functional descriptions of the software
found in Company's written proposal to Client. If Client has made modifications to the
3
COMPANY MIGRATION AGREEMENT
TERMS AND CONDITIONS
software programs, Company will not make such corrections, unless such modifications
were specifically authorized in writing by Company.
2.4 Schedule of Verification. Company will install the software products and cause the same to
be verified within sixty (60) days after Client makes available to Company the equipment into
which the software product is to be loaded. Company shall exercise reasonable efforts to
cause the software products to be verified according to the schedule set forth in this
paragraph, but Company shall not be liable for failure to meet said schedule if, and to the
extent, said failure is due to causes beyond the control and without the fault of Company.
2.5 Limited Warranty. Company warrants that the then current, unmodified version of the
Company software products will substantially conform to the then current version of its
published current specifications. THIS WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE
LAW, ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS,
WHETHER EXPRESS, IMPLIED OR VERBAL, STATUTORY OR OTHERWISE, AND
WHETHER ARISING UNDER THIS AGREEMENT OR OTHERWISE ARE HEREBY
EXCLUDED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
2.6 Intellectual Property Indemnity.
In the event that the software products are determined to infringe upon any existing United
States patent, copyright, or trademark rights held by any other person or entity, Company
shall defend and hold harmless Client and its officers, agents and employees from any claim
or proceedings brought against Client and from any cost damages and expenses finally
awarded against Client which arise as a result of any claim that is based on an assertion that
Client's use of the software products under this Software License Agreement constitutes an
infringement of any United States patent, copyright, or trademark; provided, however, that
Client notifies Company promptly of any such claim or proceeding and gives Company full
and complete authority, information, and assistance to defend such claim or proceeding and
further provided that Company shall have sole control of the defense of any claim or
proceeding and all negotiations for its compromise or settlement provided that Company shall
consult with Client regarding such defense. In the event that the software products are finally
held to be infringing and the use by Client is enjoined, Company shall, at its election: (1)
procure for Client the right to continue use of the software products; (2) modify or replace the
software products so that they become non -infringing; or (3) if procurement of the right to use
or modification or replacement cannot be completed by Company, terminate the license for
the infringing software product, and upon termination, refund the license fees paid for the
infringing software product as depreciated on a straight-line basis over a period of seven (7)
years with such depreciation to commence on the execution of this Agreement. Company
shall have no liability hereunder if Client modified the software products in any manner
without the prior written consent of Company and such modification is determined by a court
of competent jurisdiction to be a contributing cause of the infringement or if the infringement
would have been avoided by Client's use of the most current revision of the software
products. The foregoing states Company's entire liability and Client's exclusive remedy with
respect to any claims of infringement of any copyright, patent, trademark, or any property
interest rights by the software products, any pait thereof, or use thereof.
2.7 Limitation of Liability. IF THE MIGRATED SOFTWARE PRODUCTS DO NOT
PERFORM AS WARRANTED PRIOR TO THE INITIATION OF THE PERIOD OF PAID
MAINTENANCE FOR THE MIGRATED SOFTWARE, COMPANY'S SOLE
OBLIGATION SHALL BE TO USE REASONABLE EFFORTS, CONSISTENT WITH
INDUSTRY STANDARDS, TO CURE THE DEFECT. SHOULD THE COMPANY BE
UNABLE TO CURE THE DEFECT OR PROVIDE A COMPANY REPLACEMENT
PRODUCT, CLIENT SHALL BE ENTITLED TO A REFUND OF THE LICENSE FEE
PAID, WHICH SHALL BE CLIENT'S SOLE AND EXCLUSIVE REMEDY UNDER THIS
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COMPANY MIGRATION AGREEMENT
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SOFTWARE LICENSE AGREEMENT, WHETHER CLIENT'S CLAIMS FOR DAMAGES
ARE BASED ON A THEORY OF CONTRACT OR TORT, INCLUDING NEGLIGENCE
AND STRICT LIABILITY. THE LICENSE FEES SET FORTH IN THE INVESTMENT
SUMMARY REFLECT AND ARE SET IN RELIANCE UPON THIS ALLOCATION OF
RISK AND THE EXCLUSION OF SUCH DAMAGES AS SET FORTH IN THIS
SOFTWARE LICENSE AGREEMENT. UPON THE INITIATION OF PAID ANNUAL
SOFTWARE MAINTENANCE FOR THE MIGRATED SOFTWARE, COMPANY'S
OBLIGATIONS AND LIABILITIES SHALL BE AS SET FORTH IN SECTION 4,
ANNUAL SOFTWARE MAINTENANCE AGREEMENT.
3. Professional Services Agreement
3.1 Services Provided. Company shall provide some or all of the following services to Client, as
evidenced in the attached Investment Summary:
(a) Installation as described in the Investment Summary;
(b) Conversion of Client's existing data as set forth in the Investment Summary, with Client
being responsible for reading and complying with Company's Data Conversion Process
Statement;
(c) Training/Implementation as set forth in the Investment Summary;
(d) Consulting/Analysis as set forth in the Investment Summary; and
(e) Verification testing as described in the Software License Agreement.
3.2 Professional Services Fees.
(a) Notwithstanding specific prices to the contrary identified in the Investment Summary, all
services will be invoiced in hourly increments as delivered, plus travel and other
expenses, plus a 10% travel processing fee. Client agrees to pay Company for the actual
amount of training provided. Client acknowledges that the Investment Summary
represents only an estimate of time required to complete all phases of this Agreement.
(b) Upon the completion of each service day, or group of days, Company shall present a
Daily Log. Client shall sign the report indicating acceptance of the service day and its
subsequent billing, or noting reasons for Client's non -acceptance of such. This acceptance
is final.
(c) Client is not charged for travel time to and from the Client's site; only time spent on -site
is billed as training time, with the exception of those cases in which the Client requires
the Company trainer(s) to travel on the weekend, in which case Client will be billed for
weekend travel time at a rate of $500 per weekend day.
(d) If Client travels to Company location for training, Client shall be responsible for and
shall pay for all expenses related to the transportation and lodging of Client's employees.
(e) All requests for supporting documentation shall be made within thirty (30) calendar days
of invoice delivery. Such documentation will consist of quoted internet rates within 7
days from the date the request is received by the Company and not actual receipts. Such
quotes will be deemed acceptable documentation if price is within 25% of actual amounts
charged to Client, adjusted by unusual or seasonal travel circumstances.
(f) The rates for Verification Testing shall be the same as the Training/Implementation rates
set forth in the Investment Summary.
3.3 Training Environment. If training is being conducted at the Client's site, the Client shall
provide a productive environment to conduct training. Company is not responsible for its
inability to conduct training or for inadequate training arising due to interruptions and/or
unavailability of Client personnel to be trained. Time spent on -site by Company personnel
that results in non-productive training time beyond Company's control will be billed as
training time. Company will make reasonable efforts to schedule training on dates requested
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COMPANY MIGRATION AGREEMENT
TERMS AND CONDITIONS
by the Client. Trainers will be on -site approximately noon Monday through noon Friday,
which allows appropriate travel time to and from the Client's site.
3.4 Project Management. CLIENT agrees to designate in writing a primary contact (the "Project
Manager") to represent CLIENT and help coordinate CLIENT's personnel during the design,
development, installation, training and maintenance of the system. The Project Manager shall
have the authority to amend delivery schedules, seek additional services hours, and authorize
other changes to this Agreement.
3.5 Additional Services. Services utilized in excess of those set forth in the Investment Summary
and additional related services not set forth in the Investment Summary shall be billed at
Company's then current market rate for the service as they are incurred. Travel and other
expenses, plus a 10% travel processing fee, shall be billed as delivered.
3.6 Limitation of Liability. COMPANY SHALL NOT BE RESPONSIBLE FOR
INACCURATE DATA IN COMPANY'S APPLICATION SOFTWARE THAT IS THE
RESULT OF THE CONVERSION OF INACCURATE DATA FROM THE CLIENT'S
PRIOR SYSTEM. COMPANY'S LIABILITY FOR DAMAGES ARISING OUT OF THIS
PROFESSIONAL SERVICES AGREEMENT, WHETHER BASED ON A THEORY OF
CONTRACT OR TORT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, SHALL
BE LIMITED TO THE PROFESSIONAL SERVICES FEES IDENTIFIED IN THE
INVESTMENT SUMMARY AND PAID TO COMPANY.
4. Annual Software Maintenance Agreement
4.1 Scope of Agreement. The Client agrees to purchase, and Company agrees to provide
maintenance and support services for, the software products listed in the Investment
Summary of this Agreement in accordance with the following terms and conditions. Both
parties acknowledge that this Annual Software Maintenance Agreement covers both the
support for the software products listed in the Investment Summary of this Agreement and
licensing of updates of such installed software products.
4.2 Term of Agreement. This Annual Software Maintenance Agreement is effective on the date
executed by an officer of Company and shall have a term beginning upon the next anniversary
due date of Client's existing Annual Software Maintenance Agreement following installation of
the Migrated Software and ending upon the last day of the month one year following that date.
(a) This Annual Software Maintenance Agreement shall automatically renew for subsequent
one-year terms unless either party gives the other party at least thirty days prior written
notice of its intent not to renew prior to the expiration of the then current term. Fees for
subsequent years are subject to change.
(b) If Client has not elected to participate in the Company Annual Software Maintenance
Agreement, or elects not to renew the Annual Software Maintenance Agreement, the Client
shall be governed by the "Support Terms for Clients Not Participating in the Annual
Software Maintenance Agreement" set forth herein.
4.3 Payment.
(a) Client agrees to pay Company the amount identified in the Investment Summary for
licensing and support services of the software products in accordance with the payment
provisions set forth in Section 1.1.
(b) Additional Charges. Any maintenance performed by Company for the Client, which is
not covered by this Annual Software Maintenance Agreement, shall be charged at
Company's then current market rates. All materials supplied in connection with such non -
covered maintenance or support plus expenses shall be charged to Client.
(c) Support and services will be suspended whenever Client's account is thirty (30) calendar
days overdue and shall be reinstated when Client's account is made current.
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COMPANY MIGRATION AGREEMENT
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4.4 Licensing of Updates, Releases, and New Versions of the Installed Software Products.
(a) In consideration for the payment of the annual maintenance fees, Client's license of the
Company's installed software products set forth in the Investment Summary shall be
extended to include any and all updates, releases, and/or new versions of the installed
software products delivered to Client under this Annual Software Maintenance
Agreement, subject to the terms, conditions, and restrictions set forth in Section 2.1 of the
Software License Agreement.
(b) For as long as a current Annual Software Maintenance Agreement is in place, Company
shall promptly correct any functions of the software products that fail to substantially
comply with Company's current specifications for the most current version of the
software products. If Client has made modifications to the software products, Company
will not make such corrections, unless modifications were specifically authorized in
writing by Company.
(c) Company reserves the right to change the functionality of future releases of its software
and Client understands that Company is not obligated to include specific functionality in
future releases unless provided for herein.
d.5 Terms and Conditions for Support.
(a) Company shall provide software -related Client support during standard support hours,
which are currently 7:00am to 7:00pm, Central Standard Time, Monday thru Friday,
excluding holidays. Company reserves the right to modify these support hours as
Company sees fit in order to better serve its entire client base. Assistance and support
requests which require special assistance from Company's development group shall be
taken and directed by support personnel.
(b) Company shall maintain staff that is appropriately trained to be familiar with the software
products in order to render assistance, should it be required.
(c) Company shall provide Client with all updates that Company may make to the then
current version of the installed software products covered in this Agreement. CLIENT
agrees to install such updates promptly after receipt.
(d) Client acknowledges that the updates/enhancements may not be compatible with Client's
particular hardware configuration or operating system. Client acknowledges that
additional hardware and software may be required, at the Client's expense, in order to
utilize the updates/enhancements.
(e) Company shall make available appropriately trained personnel to provide Client additional
training, program changes, analysis, consultation, recovery of data, conversion, non -
coverage maintenance service, etc., which shall be billable at the current per diem rate
plus expenses. Company employs many CPAs, but the Client acknowledges that If is
not a board registered CPA firm.
(f) COMPANY shall provide CLIENT with remote support through the use of secure
connection over the Internet connection via Citrix GotoAssist. If CLIENT will not allow
access through GotoAssist, COMPANY cannot guarantee support standards will be met.
4.6 Support Terms for Clients Not Participating In the Annual Software Maintenance
Agreement. If Client elects not to participate in the Company Annual Software Maintenance
Agreement, Client shall receive support on a "time and materials" basis in accordance with the
following terms:
(a) Clients not on software support maintenance shall receive the lowest priority for Software
Support;
(b) Clients not on software support maintenance shall be required to purchase new releases
of the software, including, without limitation, fixes, enhancements and updates, such as
Tax Tables, W-2 reporting formats, 1099 changes, etc.;
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COMPANY MIGRATION AGREEMENT
TERMS AND CONDITIONS
(c) Clients not on software support maintenance shall be charged $175 per hour with a one -
hour minimum for all software support calls;
(d) Clients not on software support maintenance shall not be granted access to Company's
software support web -site;
(e) Clients not on software support maintenance are subject to higher rates for training and
continuing education performed by Company employees, which is due to the fact that the
Client may not be utilizing the most current version of our software;
(f) Company will not guarantee a program fix to a documented bug for software versions
that are not the currently released version (because every Client is on software support
maintenance, often times, bug fixes are rolled into the latest release and then sites are
upgraded to the latest release of the software); and
(g) If a Client decides to discontinue software support maintenance and later chooses to
reinstate this Annual Software Maintenance Agreement, the Client shall be required to
pay the portion of annual software support maintenance fees for the Enhancement and
Software Updates (27%) dating back to the date when the Client discontinued software
support maintenance.
4.7 Additional Services. The services listed below are not included in this Annual Software
Maintenance Agreement. These services shall be provided at Company's discretion and will be
billed on a Time and Materials basis at Company's then current rates:
(a) Changes to print programs;
(b) Software modifications;
(c) Software Training;
(d) Responding to problems caused by bad data;
(e) Responding to problems caused by hardware;
(f) Responding to problems caused by operator error;
(g) Responding to problems caused by software that is not Company software;
(h) Responding to problems resulting from misuse, accidents, Client neglect, fire, or any
other cause not within Company's reasonable control;
(i) Changes made to the Company software other than by Company personnel; and
(j) Any other services performed by Company not otherwise specifically provided for in this
Agreement, including but not limited to, bank reconciliation, reconciling out of balance
reports, balancing segments of the system, etc.
4.8 Limitations and Exclusions. The support and services of this Annual Software Maintenance
Agreement do not include the following:
(a) Support service does not include the installation of the software products, onsite support,
application design, and other consulting services, support of an operating system or
hardware, or any support requested outside of standard support hours.
(b) Client shall be responsible for implementing, at its expense, all changes to the current
version. Client understands that changes furnished by Company for the current version
are for implementation in the current installed software products version, as it exists
without customization or Client alteration.
(c) If Client has made modifications to the software products, Company will not support the
modified software products, unless modifications were specifically authorized in writing
by Company.
4.9 Client Responsibilities.
(a) Client shall provide, at no charge to Company, full and free access to the software
programs covered hereunder, including the following; working space; adequate facilities
within a reasonable distance from the equipment; and use of machines, attachments,
features, or other equipment necessary to provide the specified support and maintenance
service. Such environment includes, but is not limited to, use of the appropriate
operating system at the version and release levels specified by Company and additionally
specifies that the environment for any Company software application requires the Client
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COMPANY MIGRATION AGREEMENT
TERMS AND CONDITIONS
to have e-mail and Internet access. Client shall provide telephone lines, communications
software specified by Company, and all equipment necessary to use Company's on-line
support. Client shall be responsible for all additional costs incurred to the extent such
hardware and software does not conform to Company's current specifications. The
acquisitions of necessary hardware and software meeting the requirements then in effect
shall be the sole responsibility of the Client.
(b) CLIENT shall maintain a high speed Internet connection (DSL, Cable, or faster) and must
be able to provide COMPANY with IP connection to CLIENT's network through Citrix
CotoAssist, VPN, Citrix, or Microsoft Terminal Services. COMPANY shall use the
connection to assist with problem diagnosis and resolution. COMPANY is not
responsible for purchase of VPN client software license or configuration of CLIENT's
firewall settings. If CLIENT will not allow access through GotoAssist, COMPANY
cannot guarantee support standards will be met.
(c) Client must maintain an active e-mail address capable of receiving a 5 MB attachment.
This e-mail account must be accessible from a PC connected to the server hosting the
Company software applications.
(d) Client must open firewall ports to enable access to Company's FTP server for program
updates via Live Update.
(e) CLIENT is responsible for reading and complying with COMPANY's Systems
Requirements.
(0 CLIENT is responsible for ensuring that data and application backup processing is
occurring, as well as, verifying the existence and accuracy of the data being backed up.
For mission critical data, COMPANY highly recommends regularly scheduled off -site
backup services, as well as, frequent local backups.
4.10 Limitation of Liability. UPON THE INITIATION OF MAINTENANCE AND SUPPORT
SERVICES UNDER THIS ANNUAL SOFTWARE MAINTENANCE AGREEMENT, THE
LIABILITY OF COMPANY, WHETHER BASED ON A THEORY OF CONTRACT OR
TORT, INCLUDING NEGLIGENCE AND STRICT LIABILTY, SHALL BE LIMITED TO
FIXING DEFECTS IN ACCORDANCE WITH THE TERMS HEREIN, AND IF THE
COMPANY CANNOT FIX DEFECTS, TO THE MAINTENANCE AND SUPPORT FEES
PAID BY CLIENT FOR THE SERVICES UNDER THIS ANNUAL SOFTWARE
MAINTENANCE AGREEMENT. THE PRICES SET FORTH IN THE INVESTMENT
SUMMARY REFLECT AND ARE SET IN RELIANCE UPON THIS ALLOCATION OF
RISK AND EXCLUSION OF SUCH DAMAGES AS SET FORTH HEREIN.
5. Hardware and System Software Agreement
5.1 Agreement to License or Sell Hardware. For the price set forth in the Investment Summary
(Hardware & System Software), Company agrees to license or sell and deliver to Client, and
Client agrees to accept from Company, the hardware and system software products set forth
in the Investment Summary.
5.2 License of Hardware.
Upon Client's payment for the hardware listed in the Investment Summary, for the license
fees set forth in the Investment Summary, Company shall grant to Client, and Client shall
accept from Company, a non-exclusive, nontransferable, non -assignable license to the
hardware and system software products and accompanying documentation and related
materials for internal business purposes of Client, subject to the conditions and limitations in
this section.
5.3 Price and Costs.
(a) Client agrees to pay Company, and Company agrees to accept from Client as payment in
full for the hardware and system software products, the price set forth in the Investment
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COMPANY MIGRATION AGREEMENT
TERMS AND CONDITIONS
Summary in accordance, which shall be paid in accordance with the payment provisions
set forth in Section LI.
.
(b) Unless otherwise indicated in the Investment Summary, the price includes costs for
shipment of and insurance while in transit for the hardware and system software products
from the supplier's place of manufacture to Client's site.
5.4 F.O.B. Point. Delivery of each hardware and system software product shall be F.O.B.
Client's site.
5.5 Schedule of Delivery. Delivery of each hardware and system software product shall take
place according to mutually agreeable schedule, but Company shall not be liable for failure to
meet the agreed upon schedule if, and to the extent, said failure is due to causes beyond the
control and without the fault of Company.
5.6 Client Delays. If any act or failure to act by the Client delays Company's performance,
Company shall be excused from performance for an amount of time commensurate with the
delay caused by Client. Client acknowledges that its delay may excuse Company from
performance for an amount of time greater than the delay caused by Client. Such delays by
Client that may cause Company to delay performance include, but are not limited to, failure to
have prepared any data in the form and format requested by Company, on or before the date
specified by Company or to have verified such data for accuracy, submission of erroneous data
to Company or Client's failure to have completely prepared the hardware's installation site prior
to the hardware's actual delivery, including, but not limited to, failure to have all electrical work
and cable installation completed.
5.7 Installation and Verification. If itemized in the Investment Summary, the price includes
installation of the hardware and system software products. Upon the completion of
installation, Client shall obtain from the installer a certification of completion, or similar
document, which certification or similar document shall constitute Client's acceptance of the
hardware and system software products. Such acceptance shall be final and conclusive except
for latent defects, fraud, and such gross mistakes as amount to fraud.
5.8 Site Requirements. Client shall prepare the installation site prior to the delivery of the
hardware and system software. Client is solely responsible for and shall furnish all necessary
labor and material to install all associated electrical lines, CRT cables, and telephone lines for
communication modems. Client is responsible for installing all required cables.
5.9 Warranties. ALL WARRANTIES RELATING TO THE HARDWARE AND SYSTEM
SOFTWARE ARE PROVIDED DIRECTLY FROM THE HARDWARE
MANUFACTURERS AND/OR SOFTWARE PUBLISHERS UNDER THE TERMS AND
CONDITIONS OF THEIR RESPECTIVE WARRANTIES. THE WARRANTIES SET
FORTH IN THIS HARDWARE AND SYSTEM SOFTWARE AGREEMENT ARE
EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES
REPRESENTATIONS OR WARRANTIES EXPRESSED, IMPLIED OR STATUTORY,
INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE AND SYSTEM INTEGRATION.
5.10 Maintenance. There is no hardware maintenance provided pursuant to this Agreement, unless
otherwise set forth in the Investment Summary, in which event such hardware maintenance
shall be governed by the terms of Company's Annual Hardware Maintenance Agreement.
5.11 Limitation of Liability. CLIENT EXPRESSLY ASSUMES FULL AND SOLE
RESPONSIBILITY FOR THE SELECTION AND USE OF THE HARDWARE AND
SYSTEM SOFTWARE. COMPANY'S LIABILITY FOR DAMAGES ARISING OUT OF
THIS HARDWARE AND SYSTEM SOFTWARE AGREEMENT, WHETHER BASED ON
A THEORY OF CONTRACT OR TORT, INCLUDING NEGLIGENCE AND STRICT
LIABILITY, SHALL BE LIMITED TO THE PRICE PAID FOR THE HARDWARE AND
SYSTEM SOFTWARE PRODUCTS AS SET FORTH IN THE INVESTMENT
SUMMARY. THE PRICES SET FORTH IN THE INVESTMENT SUMMARY REFLECT
AND ARE SET IN RELIANCE UPON THIS ALLOCATION OF RISK AND THE
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COMPANY MIGRATION AGREEMENT
TERMS AND CONDITIONS
EXCLUSION OF SUCH DAMAGES AS SET FORTH IN THIS HARDWARE AND
SYSTEM SOFTWARE AGREEMENT.
6. Annual Hardware Maintenance Agreement
6.1 Scope of Agreement. For the prices set forth in the Investment Summary, Client agrees to
purchase, and Company agrees to provide, services for the equipment specified therein in
accordance with the following terms and conditions. Company requires all like -kind
hardware to be covered (i.e., all cash drawers, all receipt printers, etc.).
6.2 Price and Payment. The Client agrees to pay the Annual Hardware Maintenance fee
specified in the Investment Summary. Company guarantees this fee for the then current term
of the Annual Hardware Maintenance Agreement; however, fees for subsequent years are
subject to change. Client shall pay the annual hardware maintenance fees in accordance with
the payment provisions set forth in Section l.l.
6.3 Equipment Maintenance Program Terms. Company agrees to provide the maintenance on
the equipment specified under this Annual Hardware Maintenance Agreement in accordance
to the following terms:
(a) In the event of equipment failure. Company shall repair the defective equipment and
provide the Client with "like or near like" equipment while the defective equipment is
being repaired.
(b) Client shall notify Company of equipment failure. Upon notification, Company shall
ship via over -night service to the Client the appropriate loaner equipment. The Client
shall package the defective equipment in its original container and ship the equipment to
Company.
(c) Once the equipment is repaired, it shall be shipped to the Client. Upon receipt of the
repaired equipment, the Client shall ship the loaner equipment back to Company. The
loaner equipment should be shipped back to Company within two days of receiving the
repaired equipment. The Client agrees to pay daily rental fees to Company if the loaner
equipment is not shipped back to Company within the time frame specified.
(d) The Client is responsible for shipping cost related to shipping equipment to Company.
Company is responsible for shipping cost related to shipping equipment to the Client.
6.4 Definitions. The following definitions apply to the terms of this Annual Hardware
Maintenance Agreement:
(a) Loaner Equipment: equipment loaned to the Client by Company for use while the Client's
equipment is being repaired.
(b) Like or Near -Like Equipment: equipment compatible with the Client's computer system
and capable of performing the tasks performed by the equipment being repaired.
6.5 Limitation of Liability. COMPANY'S LIABILITY FOR DAMAGES ARISING OUT OF
THIS ANNUAL HARDWARE MAINTENANCE AGREEMENT, WHETHER BASED ON
A THEORY OF CONTRACT OR TORT, INCLUDING NEGLIGENCE AND STRICT
LIABILITY, SHALL BE LIMITED TO THE ANNUAL HARDWARE MAINTENANCE
FEE PAID HEREUNDER. THE PRICES SET FORTH [N THE INVESTMENT
SUMMARY REFLECT AND ARE SET IN RELIANCE UPON THIS ALLOCATION OF
RISK AND EXCLUSION OF SUCH DAMAGES AS SET FORTH IN THIS ANNUAL
HARDWARE MAINTENANCE AGREEMENT
7. Third Party Product Agreement
7.1 Agreement to License or Sell Third Party Products. For the price set forth in the
Investment Summary (Hardware & System Software), Company agrees to license or sell and
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COMPANY MIGRATION AGREEMENT
TERMS AND CONDITIONS
deliver to Client, and Client agrees to accept from Company, the third party products set forth
in the Investment Summary.
7.2 License of Third Party Software Products.
(a) Upon Client's payment for the third party software products listed in the Investment
Summary, for the license fees set forth in the Investment Summary, Company shall grant
to Client, and Client shall accept from Company, a non-exclusive, nontransferable, non -
assignable license to use the third party software products and accompanying
documentation and related materials for the internal business purposes of Client only,
subject to the conditions and limitations in this section.
(b) Ownership of the third party software products, accompanying documentation, and
related materials shall remain with the third party manufacturer or supplier.
(c) The right to transfer this license to a replacement hardware system is governed hereby.
The cost for new media or any required technical assistance to accommodate the transfer
would be billable charges to Client. Advance written notice of any such transfer shall be
provided to Company.
(d) Client agrees that the third party software products are proprietary to the third party
manufacturer or supplier and have been developed as a trade secret at the third -party's
expense. To the extent permitted by law, Client agrees to keep the third party software
products confidential and use its best efforts to prevent any misuse, unauthorized use, or
unauthorized disclosures by any party of any or all of the third party software products or
accompanying documentation.
(e) Client shall not perform de -compilation, disassembly, translation, or other reverse
engineering on the third party software products.
(f) Client may make copies of the third party software products for archive purposes only.
Client shall repeat any proprietary notice on the copy of the third party software products.
The documentation accompanying the third party software products may not be copied
except for internal use.
7.3 Price and Payment; Costs.
(a) Client agrees to pay Company, and Company agrees to accept from Client as payment in
full for the third party products, the price set forth in the Investment Summary, which
shall be paid in accordance with the payment provisions set forth in Section 1.1.
(b) Unless otherwise indicated in the Investment Summary, the price includes costs for
shipment of and insurance while in transit for the third party products from the supplier's
place of manufacture to Client's site.
7.4 F.O.B. Point, Delivery of each third party product shall be F.O.B. Client's site.
7.5 Schedule of Delivery. Delivery of each third party product shall take place according to
mutually agreeable schedule, but Company shall not be liable for failure to meet the agreed
upon schedule if, and to the extent, said failure is due to causes beyond the control and
without the fault of Company.
7.6 Installation and Verification.
If itemized in the Investment Summary, the price includes installation of the third party
products. Upon the completion of installation, Client shall obtain from the installer a
certification of completion, or similar document, which certification or similar document shall
constitute Client's acceptance of the third party products. Such acceptance shall be final and
conclusive except for latent defects, fraud, and such gross mistakes as amount to fraud.
7.7 Site Requirements. Client shall provide:
(a) a suitable environment, location, and space for the installation and operation of the third
party products;
(b) sufficient and adequate electrical circuits for the third party products; and
(c) installation of all required cables.
7.8 Warranties.
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COMPANY MIGRATION AGREEMENT
TERMS AND CONDITIONS
(a) Company is authorized by the manufacturer or supplier of all third party software
products listed in the Investment Summary to grant licenses or sublicenses to such
products.
(b) Unless otherwise noted in any attached addendum, Company warrants that each third
party product shall be new and unused, and if Client fully and faithfully performs each
and every obligation required of it under the Third Party Product Agreement, Clients title
or license to each third party product shall be free and clear of all liens and encumbrances
arising through Company.
(c) The parties understand and agree that Company is not the manufacturer of the third party
products; therefore, the Company does not warrant or guarantee the condition of the third
party products or the operation characteristics of the third party products.
(d) THE WARRANTIES SET FORTH IN THIS THIRD PARTY PRODUCT
AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND
REMEDIES REPRESENTATIONS OR WARRANTIES EXPRESSED, IMPLIED OR
STATUTORY, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND SYSTEM
INTEGRATION.
7.9 Maintenance. It shall be the responsibility of Client to repair and maintain the third party
products after acceptance. Support for Third Party Application Software is not provided by
Company unless otherwise specified in this Agreement. Company's responsibility -is limited
to delivering the Third Party Application Software and installing the software if installation
services are provided in this Agreement.
7.10 Limitation of Liability. CLIENT EXPRESSLY ASSUMES FULL AND SOLE
RESPONSIBILITY FOR THE SELECTION AND USE OF THE THIRD PARTY
APPLICATION SOFTWARE. COMPANY'S LIABILITY FOR DAMAGES ARISING
OUT OF THIS THIRD PARTY PRODUCT AGREEMENT, WHETHER BASED ON A
THEORY OF CONTRACT OR TORT, INCLUDING NEGLIGENCE AND STRICT
LIABILITY, SHALL BE LIMITED TO THE PRICE PAID FOR THE THIRD PARTY
PRODUCTS SET FORTH IN THE INVESTMENT SUMMARY. THE PRICES SET
FORTH IN THE INVESTMENT SUMMARY REFLECT AND ARE SET IN RELIANCE
UPON THIS ALLOCATION OF RISK AND EXCLUSION OF SUCH DAMAGES AS SET
FORTH IN THIS THIRD PARTY PRODUCT AGREEMENT.
S. General Return Merchandise Authorization (RMA) Policy.
(a) In order to return or replace any product ordered from Company, Client must request and
obtain an RMA number from appropriate Company personnel. RMA numbers shall be
issued at the discretion of Company and products returned without an RMA number may
be refused by Company. Company reserves the right to refuse the return of any product
or to refuse the issuance of an RMA number.
(b) Client shall be responsible for all shipping costs. Company recommends the use of a
traceable and insurable shipping source. Company shall not be responsible for lost or
damaged products as a result of the shipping process.
(c) Qualifying products must be returned unopened with original packaging and materials,
unless otherwise agreed upon by Company in writing. The following situations will
result in the refusal of an RMA number and credit will not be issued to Client: (i) opened
inkjet or laser jet printers; (ii) opened third party software; or (iii) damaged products as a
result of irregular use of mishandling by Client.
(d) Products may only be returned to Company for account credit after an RMA number has
been issued by Company. All returns are subject to a restocking fee of 20% of original
purchase price. Failure to comply with this policy will result in a refusal of credit and
future product placement.
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